State v Sawailau [2013] FJMC 284; Criminal Case 114.2008 (31 July 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI

CRIMINAL JURISDICTION
CRIMINAL CASE NO. 114/08

BETWEEN:

STATE

AND:

VILIAME SAWAILAU

Prosecution: Mr S. Tuwaqa (DPO/W)
Accused: Ms Tarai (Legal Aid office)

Hearing: 19th April and 18th May 2013
Ruling: 31st July 2013

Ruling on No Case To Answer

Background

1. The accused person was charged for the offence of Rape contrary to section 149 & 150 of the Penal Code Cap 17.
   
2. The particulars of the offence were as follows:
   

VILIAME SAWAILAU on the 25th day of May 2007 at Nukulau Ra in the Western Division had unlawful carnal knowledge of Sainimere Manumanuwaqa without her consent.

3. The accused pleaded not guilty and matter proceeded for hearing. Prosecution called 6 witnesses to prove their case.
   

Evidence

4. I now briefly consider only salient features of the evidence adduced by prosecution during the hearing.
   
5. PW1 - Sainimere Manumanuwaqa

She recalls that on 25/5/07 at 7pm she was with at her first cousins place at Nukulau Village. First cousin is Ana. They were having juice when her father (accused) came and called her to come out. Her father smacked her and took her to his place and told her to go and sleep. She went inside her father's house to sleep and accused went outside and then returned and closed the door and came to her. He told her to lie down and stay still. Accused told her to take off her clothes and she told him she couldn't as his her father. Accused then grabbed her hands and took off her clothes and told her not to move or shout otherwise his going to kill her. Accused told her to spread her legs than he came on top of her and inserted his penis into her vagina and raped her. She couldn't recall how long it took for them to have sexual intercourse. Accused after raping her than punched and kicked her before going outside and left. She also left the house and reported the matter to her aunty Mara and Vaciseva. The message was relayed also to the village headman. Matter was than reported to police who came and investigated the matter. She went to the station and also to the hospital for medical examination.

In cross examination she maintained that she was assaulted and raped by her father the accused and that she's not lying to court. She was afraid to shout as accused had threatened to kill her whilst raping her. She also relayed the alleged incident to her aunty immediately after the incident.

In re-examination she told the court that she was not unconscious when her father was raping her.

6. PW2 – Maraia Lewadakala

PW1 had relayed to her in the evening of 25/5/07 that her father had assaulted her and had sex with her. Complainant was crying and her face bruised.

In cross examination she stated not seeing the alleged rape incident. Complainant appeared as if someone assaulted her.

In re-examination she stated that PW1 told her about the rape incident and was crying.

7. PW3 – Vaciseva Bale

Recalls on day and time in question PW1 and PW2 came to her place and told her want accused had done to PW1. Accused had raped PW1 and she was crying with bruises on her face. Matter was then relayed to the Turaga ni koro who eventually reported the matter to police.

In cross examination she stated that she never saw any rape incident.

8. PW7 – Dr Alumita Serutabua

She confirmed in the medical report that PW1 sustained swelling to the cheeks and bruising to lips. Only evidence in medical report was that of assault. There is some allegation of rape and assault in the report made by complainant.

In cross examination she stated based on the report, there's no evidence of sexual intercourse.

9. Prosecution also called as witnesses two police officers (PW5 & PW6) who were involved in the arrest and caution interview of the accused person. I do not intend to consider in detail their evidence as at this stage I'm minded only to consider or assess whether or not the evidence so far adduced by prosecution have satisfied the two pronged test in Galbraith (1981) 2 All ER 1060.
   

Issue

10. Whether there is no case to answer for accused person?
    

Law/Analysis

11. Section 178 of the Criminal Procedure Decree states that "if at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused."
    
12. In the case of State v Mahend Prasad HAA 019 of 2008, at paragraph 17, the Court had this to say when dealing with the issue of case to answer "...The test to be applied in the Magistrates Court, was explained in Abdul Ghani Sahib v The State [2005] FJHC 95; HAA 0022 of 2005; 28 April 2005, as:
    

'In the Magistrates Court, both tests apply. So the Magistrate must ask himself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and second whether the prosecution evidence, taken at it's highest, a reasonable tribunal could convict. In considering the prosecution at its highest, a reasonable tribunal could convict. In considering the prosecution case, taken at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission on no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case.'

13. I also bear in mind the principles established in the common law case of Galbraith (1981) 2 All ER 1060 with regard to the two pronged test applicable in the Magistrates Court i.e.
    
    • Whether there was no evidence in respect of each element of the offence;
    • Whether the evidence was of such a tenuous nature that a jury properly directed could not convict on it.
      
14. When considering the elements of the said offence of Rape they are as follows:
    1. Accused (Viliame Sawailau);
    2. Had sexual intercourse;
    3. With complainant (Sainimere Manumanuwaqa);
    4. Without her consent.
       
15. When considering the evidence there is relevant and admissible evidence that accused had inserted his penis into complainant's vagina.
    
16. There is relevant and admissible evidence to show that some form of force and threats were made on the complainant to force her to submit to sexual intercourse.
    
17. Further there is relevant and admissible evidence to establish that complainant had not consented to having sexual intercourse with the accused.
    
18. At a no case to answer stage I bear in mind that the duty of the court is to assess the evidence using the objective as opposed to the subjective test. That means that witness credibility, reliability and weight to be placed on material evidence is not a matter to be considered at this stage. The court will only consider these matters once all the evidence, both for prosecution and the defence are adduced before the court.
    
19. That being the position, when considering the evidence of prosecution at its highest, the Court is of the opinion that on the evidence so far adduced, a reasonable tribunal could convict on the evidence.
    

Conclusion

20. On the basis of the evidence, the court finds that there's a case to answer against the accused person.
    
21. Accused should be put to his defence.
    

Samuela Qica
Resident Magistrate

31st July 2013